State v. Cavness, 4301
| Decision Date | 09 May 1963 |
| Docket Number | No. 4301,4301 |
| Citation | 381 P.2d 685,46 Haw. 470 |
| Parties | STATE of Hawaii v. Orestus CAVNESS. |
| Court | Hawaii Supreme Court |
Myer C. Symonds, Honolulu (Bouslog & Symonds, Honolulu, of counsel), for defendant-appellant.
John H. Peters, Pros. Atty., City and County of Honolulu, and George I. Hieda, Deputy Pros. Atty., for the State, plaintiff-appellee.
Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.
The defendant-appellant was convicted after a jury trial of aiding and abetting in the commission of an act of prostitution in violation of R.L.H.1955, § 309-30. As grounds for reversal, appellant urges that the evidence was insufficient to sustain the verdict and that misconduct of the prosecuting attorney in argument to the jury constituted prejudicial error.
The act of prostitution upon which the charge against the defendant is based was committed by a Theresa Barnes with one Ryan. The latter was the prosecution's chief witness. He testified that at about midnight on November 25, 1961, as he was walking on Smith Street in Honolulu, he saw Theresa Barnes 1 (who had been engaged by him as a prostitute about three weeks before) sitting by the defendant in a barber shop; that she asked him if he wanted to talk to her and that when he said he did, she led him from the barber shop through an abandoned poolroom and then down a walkway for a short distance into a room in the rear of the premises. After he had paid her $20.00 she said she thought she heard someone or something outside, and she left the room. Later Ryan also left the room and went to the barber shop and saw the defendant, who told him to go back to the room and that Theresa Barnes would be there shortly. Ryan returned to the room and after a short while the defendant came into the room with Theresa Barnes. Defendant looked around the room and outside and told her he didn't see anything and 'for her to turn the trick in the room--it was just as good as any room to turn the trick.' 2 Ryan further testified that she asked the defendant if he would be a watchman for her and he said, 'Okay, I will wait outside.' Ryan said he had sexual intercourse with Theresa Barnes and that during the course of his relations with her she called out: 'Cal, are you still there?' and that the defendant replied he was.
Three police officers were hiding in the building alongside the walkway opposite the room in which the act of prostitution occurred. Their testimony corroborated that of Ryan in many particulars, including his testimony respecting the defendant's activities in bringing Theresa Barnes back to the room, telling her there was nothing to be afraid of, assuring her that he would stand outside and watch for her, and in actually standing near the room while she had intercourse with Ryan. The defendant was arrested there when the police officers came out from their hiding place. One of the officers testified he heard her tell the defendant 'She didn't want to turn the trick, she was afraid.' And that defendant told her, 'This room was just as good as any--to stay in the room there,' whereupon she said, 'Okay, Cal, I want to you to stand outside and watch for me.'
Defendant took the stand. He testified he knew Theresa Barnes had been accused of being a prostitute but that, 'I couldn't very well say that I definitely knew she was a prostitute.' He said he never thought anything of the fact 'that Miss Evelyn Barnes took Ryan in the back.' He denied being asked by Theresa Barnes to act as a watchman or that he did stand by in the vicinity of the room she and Ryan were in. He accounted for his presence there, when arrested, by asserting that he had gone back to close the door of another barber shop of his facing Pauahi Street, because a friend had told him a short time prior thereto that it was open.
In effect, it is argued that the evidence was insufficient to sustain the verdict in that the prosecution failed to prove the defendant knew Theresa Barnes was being paid, and there was therefore no evidence to support the charge.
It is clear from the prosecution's case that an act of prostitution was committed, that the defendant furnished the room and accommodations for the act, and that he was asked to...
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People v. Ford
...as a matter of law, that comment is never permissible if a witness who has not been called was once a codefendant. In State v. Cavness (1963) 46 Hawaii 470, 381 P.2d 685, for example, the defendant was charged with aiding and abetting a prostitute. The prosecution evidence suggested that he......
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State v. Schnabel
...of the prosecutor[,]" which "removed any harm or prejudice ... caused by the prosecutor's statements"); State v. Cavness, 46 Haw. 470, 473, 381 P.2d 685, 686–687 (1963) ("When the Court has instructed that something which the[ jurors] have heard is not to be considered by them, we must pres......
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